Resolve and Fortitude : Microsoft's ''SECRET POWER BROKER'' breaks his silence (34 page)

From here on, he grew thirstier for bloodlusting revenge and, without hesitation, deployed a pretty dirty trick. He showed me a Gateway (GW) document that I had never seen before. This at once confirmed that GW had been actively helping the Feds to plot the case against us. The referenced document was under seal, meaning only attorneys knew about its content and existence. Looking at the large stamp Sealed on Top, I asked if we could even discuss this in open court. Jackson’s prompt answer: “It’s my order, and we can do it.” Unjust for two reasons: Without prior access, I was absolutely unprepared in regard to its content. Secondly, I could not ask for legal advice. Jackson then prodded me to answer the pending question without reading the sixty-page document completely. Considering his actions unfair, I took my time, painstakingly delaying my answer to the long-suffering Boies.

He then engaged me in a discussion about why the latest version of IE was no longer uninstallable by end users. He was asking the wrong guy. Neither had I made that decision, nor was I privy to any technical reason why it had been disabled. I had my opinion about how unfair this was. No one asked about it. Spending a lot of time on the subject without getting the answers he was hoping for, the judge eventually asked Boies to watch the time, and as soon as he relented, we adjourned for the day.

A friendly securities analyst I ran into when leaving the courthouse stopped me. I told him I was forbidden to talk about my testimony, and he politely refrained at once. In parting, he gave me a thumps-up and said if any witness would have done as well, MS would have had a better chance of winning. Just nodding, I said, “Thank you.” Returning to my hotel room, I had a lonely sequestered dinner.

Before drifting off to sleep, I reflected on what I had learned during the afternoon. As a debutante witness, I felt I had done pretty well. Now I was unconsciously analyzing Boies’s interrogation style and identified one technique he persistently deployed. He would ask a broad and leading question, purportedly referring to a document he was presenting. After careful inspection, its content was often a nuance apart from how he had described it. Catching this early had protected me from being lured into the misty, alluring realm of speculation or volunteering information. Was this questioning technique correlated to his handicap or just his way of seducing a witness to be less guarded, loose, and vulnerable? I concluded that only staying alert and vigilant would prevent him from leading me down a dangerous path onto a craftily prepared trapdoor. I needed to keep him honest and his scope narrow. My legal team had warned me about this being one of his dangerous tactics and had helped me by watching him and interrupting the proceedings when he misquoted. So far, together, we had done well catching his mischief. With this assuring thought, Morpheus took me into peaceful arms.

If I’d anticipated the second day on the stand being less nerve-racking, I was soon to be proven wrong. I had slept well, gotten up early, reviewed my notes again, and entered the courthouse through the usual carnival atmosphere, this time with a bit more confidence. As soon as I was back on the stand, animated and eager to score a big point, Boies launched back into detailing browser choices in boot sequences. I could smell something was up.

All of these superstar prowlers are first and foremost absorbed in gratifying their egos; truth comes later, if at all. Boies was no exception, and his afternoon press conferences demonstrated that trait to the hilt. As a natural dramatist, he took great satisfaction in posing as victor and reveling in providing useful snippets journalists could march out into print. Yesterday afternoon, he had nothing spectacular to show off—truly disappointing for the brawny king of the animal dominion. Not having accumulated the de facto bragging rights he was accustomed to when devouring yet another victim rekindled his vigor. As we continued turning around and around on the by-now well-worn subject of where Netscape’s advertising was allowed or disallowed, I briefly faltered—losing my concentration. I had already answered the self-same question thoroughly, at least twice, and his insistence on clinging to and hammering onto the moot subject riled me with annoyance. I dropped my guard, supplying him with an untrue answer—the one he wanted in the record.

The gallery groaned. Boies abruptly and skillfully changed topic. By now he had a huge grin in his face—finally he had scored! I interrupted him forcefully and turned to the judge, whom I told flat-out that I had misspoken, not having understood Boies’s question properly. For ten long minutes, the lion refused to accept my argument, clawing back at me again and again. When I adamantly insisted on a correct answer for the record, he accepted it under ferocious protest. I ignored him and took the opportunity to make additional points, addressing the judge directly, infuriating my opponent further. I had recovered, through persistence and stubborn perseverance, but I was not happy with my performance. Smelling a faint of blood had excited the beast in him; would I survive the next fight? I longed for more than the tepid glass of water in front of me to regain my strength. Bourbon to the rescue!

I was then asked if we had ever incented OEMs to make our browser the default one. Still shaken from the prior incident, I couldn’t recall this right away. But as Boies pawed deeper through the subject, the details reemerged, and I offered him a long explanation for why we had done so. He exploded with impatient anger. By all inference, he derided my memory, which wasn’t supposed to recover so fast. Unable to shake me and score, he eventually accepted my answer under protest. After this last bout, my nervousness suddenly disappeared.

In the next round, I paused during a longer explanation, something he for sure did not desire to hear. As he impatiently chimed in, I told him “I am not finished” and just pushed ahead with my answer. When I paused for the last time, he angrily roared back at me, “Are you finished?” I was getting on his nerves, and he was getting on mine. In a game my attorneys had told me I could not easily win if it annoyed the judge and especially against such a seasoned and battle-savvy brute.

Analyzing during recess what had just occurred, I decided to exercise extra caution and restraint. Back in session, before I could collect myself, he struck with retaliatory precision and speed. He showed me an e-mail Bill had written about the importance of winning browser share, and when I battled with him over how to interpret its content, he questioned my ability to understand and communicate in English. Another opportunity to advance the clock! As I calmly and deliberately led him down the path that I can speak and write in several languages, he tried to establish that my correspondence with Bill had always been in English. A straightforward question would have produced a quick answer; instead, valuable minutes slipped by. Irritated, the judge was looking once again at his watch.

So the jousting clattered on, Boies unhappy, interrupting my answers constantly, and my lawyers asking the judge to reprimand him. A nice interplay of courtroom drama developed, ending with Jackson issuing the detached admonishment “Let him finish,” with the lion snarling, “I will.” Boies’s forehead was now glistening with sweat. He understood after having hurt me once that it would get much harder to gash me a second time.

I gave him no inch when he showed me a second e-mail from Bill expressing concern about OEMs displaying other browsers more prominently than IE. For Boies this meant Bill was definitively telling me to stop OEMs from loading Netscape Navigator onto their systems. Bill never mentioned Navigator specifically. Boies would not accept my correction; for him, only one competitive browser existed, so again, in detail, I listed all the ones I knew, squandering valuable time on a hairsplitting issue.

My fear and respect for the lion’s ability to successfully stalk me began to wane. No firearm needed escaping him in finality, just careful attention to detail combined with dogged persistence. Maybe he was tired and less prepared after having been in court for such a long time, or perhaps his support system was functioning less thoroughly than expected. My internal voice came back sharply: “Careful, he nearly got you down once. Don’t become overconfident.”

His ego wounded and his desperation visibly hungrier for a kill, Boies continued playing word games, prompting me to turn to the judge and voice my concern about his defamatory tactics. Boies’ response: “The record will have to show that! The court will have to decide that. I am not permitted to comment on that. All I can do is ask questions.” I was amused and amazed when the prosecutor felt obliged to justify his slippery tactics!

Back after recess and more alert than ever, Boies switched subjects: just another clever obfuscation to test my short-term memory. Behind him, once Boies’s busy minions recognized I had not proffered the desired answer, they burrowed deeper into their mountains of documents, locating supplementary confrontational evidence. The paper shuffling never stopped. Still probing the motivation for implementing our restrictions, letters from OEMs were produced, outright condemning them. Way too theatric to be taken seriously, nor ever quantified by their authors. These were opinions of a scant few citing higher support costs and user confusion as reasons for challenging our zero alteration rules. For the prosecutor, they proved we caused consumers harm. I argued that we had a perfectly valid copyright and distributors, such as OEMs, were not supposed to change Windows without consent. I used Melville’s
Moby Dick
as an example. Imploring that as a reseller of books, you can’t just tear the last chapter out if you don’t like the ending! You can’t replace the introduction either, can’t change the names of characters or the color of the whale. I insisted the changes OEMs had demanded were equivalent to “butchering” Windows. Our software pros did not want their masterpieces altered by amateurs. The judge listened.

During the rest of the morning, I repeated dozens of times that I considered IE part of Windows. Boies again paraded out e-mails from technical personnel naming IE a standalone Web browser. I could not help on this issue; I had only sold and delivered Windows and IE as a whole. Boies had to find other witnesses to claim differently.

Soon I was off to lunch. After finishing my meal, I rated my performance. On the first day, using a scale from one to ten, I had probably come close to a nine, but not today. I had to focus and improve. Going for the lion’s throat had to be replaced by entangling him in his own net.

Despite my adamant refusal to acknowledge Windows and IE as separate products, the prosecutor just as obstinately refused to give up on eventually tricking a complicit statement out of me. So, immediately following lunch recess, he continued with his useless and futile exercise. He tried every possible angle, from the simple fact that we called IE a browser (purely a name for one of Windows’s many features, like Media Center) to IE being delivered on a separate CD. He knew very well that the CD always included more than just IE code; nonetheless, he pressed me to say the opposite. Eventually he moved on, asking me if I had influenced integrating IE code deeper into Windows. Not a smart question, since when does a sales exec make intrinsic tech decisions?

The dispute about the browser ended in telling him there were other competitive responses available to Netscape to respond to our deeper integration efforts. In a nutshell, that company did not need to sell an OS to win the battle of the browsers—just a better browser. Now the judge was listening and interrupted, offering me an opportunity to explain why our browser was the better product. I explained my impression to him from a PC user’s perspective. “I believe we really simplified basically the operation and usage of the system for the consumer.” The lion was pacing impatiently as I embarked on a lengthier explanation; his growing agitation and desperation showed in a deeply creased forehead.

He abruptly switched the topic to browser distribution and was now eager to elicit from me the OEM channel was the most important one. He was wrong from the start; there were way too many other options. Boies was trying to prove we foreclosed Netscape in the OEM channel despite the fact that OEMs were shipping plenty of other browsers on their PCs, as my tape had shown. He tried to get me to guess how browser-distribution market share was split between the various options. I would have none of it.

To illustrate his persistent interrogation tactic, let’s listen to one of the dialogues as Boies asks me if I knew the percentage of PCs being shipped with Netscape’s browser. My answer: “I personally have never tracked this. I do not know.” Boies: “Just give me an approximation.” “I do not know.” Boies again: “Can you give me a range at all?” And this goes on and on. “Give me a wild guess” ends in “Give me any range or approximation,” and so on. So to shut him up, I said maybe 20 or 30 percent of the systems came with Netscape’s browser, expressing I absolutely did not know any precise number and adding this was merely my gut feeling. Jackson allowed it.
46
Next question: “Now, all I am trying to do is probe what the basis of that gut feeling is. Has somebody told you information that you are relying on?” This continued for a long time without me confirming any exact data. He was truly badgering me—on a fishing expedition, in waters where no fish existed. Even desperately hungry lions normally don’t venture there.

Never missing an opportunity to incriminate a witness, he launched into the testimony of John Rose, a Compaq executive, given earlier to help our case. When I told him I had read that particular section, he accused me of lying, claiming I had denied this in the morning. He was dead wrong and painfully had to admit he probably misremembered and immediately thereafter apologized.

Afterward, he stirred up another debate over why we restricted OEMs’ shells not to boot directly into Windows, and got nowhere. Erratically, he switched back to prove OEMs were the key distribution channel for browsers. An assumption opined in another memo written by an MS product-line marketer. He had written “Users follow OEM’s lead into the Internet.” I again disagreed. When Jackson interfered, I told him maybe 20 percent of the users would do this because of obvious convenience and carefully defined my estimate as purely anecdotal. Not good enough for Boies. He continued prodding and probing into the subject further. Telling him I had no statistical evidence for my opinion, he finally let go.